Since it was first introduced at
the Atlanta Games in 1996,[1]
the CAS ad hoc Division has never been as crowded as it was during this year’s Rio
Olympics. This is mainly due to the Russian doping scandal, which has fuelled the CAS with Russian athletes challenging their
ineligibility to compete at the Games. The CAS recently revealed that out
of 28 awards rendered, 16 involved Russian athletes challenging their
ineligibility. This Russian ballet is
a direct result of the shocking findings of Richard McLaren’s Independent Person (IP) Report ordered by the World Anti-Doping Agency (WADA).
McLaren’s investigation demonstrated that the Russian State was coordinating a
sophisticated doping system. The revelation triggered an outrage in the media
and amongst other competitors. Numerous calls (especially by WADA and various National Anti-Doping Organisations) were heard urging the IOC to ban the entire Russian
delegation from the Olympics. The IAAF decided to exclude
the whole Russian athletics team, [2]
with the exception of Darya Klishina, but, to the disappointment of many, the IOC refused to heed these calls and decided, instead,
to put in place a specific procedure to assess on a case-by-case basis the
eligibility of Russian athletes.
The IOC’s Decision (IOC
Decision) of 24 July foresees that the International Federations (IFs) are
competent to determine whether each Russian athlete put forward by the Russian
Olympic Committee (ROC) to participate in the Olympics meets a specific set of
conditions. Moreover, the ROC was also barred from entering athletes who were
sanctioned for doping in the past, even if they have already served their
doping sanction. In the end, a majority of the Russian athletes (278 out of 389 submitted by the ROC) cleared the IOC’s bar relatively easily, but some
of them did not, and many of the latter ended up fighting for their right to
compete at the Rio Olympics before the CAS ad hoc Division.[3]
In the following blogs, I will analyse the ten published CAS awards related to
Russian athletes.[4] It
is these legal fights that I suggest to chronicle in the following parts of this
blog. To do so, I have divided them in five different (and analytically coherent)
Acts:
Act I: Saved by the Osaka déjà-vu
Paragraph 3 of the IOC Decision: “The ROC is not allowed to enter any
athlete for the Olympic Games Rio 2016 who has ever been sanctioned for doping,
even if he or she has served the sanction”.
Yulia Efimova, a top-level Russian
swimmer, had a rough time at the Rio Games, where she was much criticized by her peers.
Yet, as a sweet revenge, she did win two silver medals. Her achievement was made
possible by a decision of the CAS ad hoc Division that enabled her to compete,
although she had been sanctioned previously for doping and fell under paragraph
3 of the IOC Decision. In principle, Efimova, like the rowers Anastasia Karabelshikova and Ivan Podshivalov,
did not comply with the criteria imposed by the IOC. However, in the awards CAS
OG 16/13 and CAS OG 16/06, the CAS Panels,
relying primarily on the concept of ‘natural justice’ and referring to the
established CAS jurisprudence regarding the so-called ‘Osaka rule’,[5]
sided with the Russian athletes against the IOC. The ‘Osaka rule’, which was
adopted by the IOC in June 2008 in Osaka, foresaw that any person sanctioned
with a doping ban of more than six months would be ineligible for the Olympic
Games following the date of expiry of the ban. In 2011, the CAS found that rule
to be contrary to the WADA Code and the IOC’s Olympic Charter.[6]
In both awards, the CAS ad hoc
Division clearly identified that the “issues before the Panel focused primarily
upon the legality of paragraph 3 of the
IOC
Decision”.[7]
The arbitrators emphasized that the IOC had acted in “good faith and with the
best intentions”[8] in
addressing the release of the IP Report. However, the Panels also stressed that
the IOC Decision recognised the “right of the individual athletes to natural
justice”.[9]
In this regard, both Panels challenged the legality of paragraph 3 of the IOC
Decision. Thus, it is argued that this paragraph “contains simple, unqualified
and absolute criterion”.[10]
Furthermore, “there is no recourse for such an athlete, no criteria that
considers the promotion by the athlete of clean athletics (as the IAAF consider
by way of an example) or any other criteria at all”.[11]
Therefore, the arbitrators struggled “to reconcile this paragraph [3] with the
stated aim to provide the athletes with an opportunity to rebut the presumption
of guilt and to recognise the right to natural justice”.[12]
Consequently, “this denial of the rules of natural justice renders paragraph 3
as unenforceable”.[13]
Another related question was whether paragraph 3 should be treated as an
eligibility rule or an additional sanction on athletes that had already been
sanctioned for positive doping test. Though they deemed it a moot point, both Panels
referred to the well-known case law of the CAS on the ‘Osaka rule’ to find that
paragraph 3 constitutes an additional sanction.[14]
While Efimova went on to win two
medals, both Karabelshikova and
Podshivalov were barred from
participating to the Rio Games on other grounds. The fact that paragraph 3 of
the IOC Decision is deemed unenforceable should come as no surprise to anybody
involved in international sports law. The CAS jurisprudence on this matter is
very much a principle stand, under the current WADA Code there is simply no
room for an Olympic ban in addition to a doping ban. This is a lesson often lost
on the media and general public during Olympic days, but the principle of
legality is a cornerstone principle of our legal systems and cannot be
discarded lightly. Why the IOC decided to ignore this jurisprudence is open to
interrogation. Did it want to appear as doing something substantial, while
being aware that the CAS would not allow the rule to fly? Maybe. If not, paragraph
3 of the IOC Decision was just legal amateurism at its best, unjustifiable
under any state of doping emergency.